Director of Public Prosecutions v Nguyen

[2016] VCC 1555

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01356
CR-16-01509
CR-16-01357

DIRECTOR OF PUBLIC PROSECUTIONS

v

GIAP VAN NGUYEN
THIEN VU HOANG
KHAC TU NGUYEN

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 October 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 1555

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Andrews
For Accused Nguyen	Mr A. Patton
For Accused Hoang	Ms M. Harris
For Accused Nguyen	Mr C. Nikakis

HIS HONOUR:

1Giap Van Nguyen, you pleaded guilty to one charge of cultivating a narcotic plant in a commercial quantity.  You come before the court aged 22.  You were 21 at the time of the offending.  You have no prior convictions.

2A brief but comprehensive submission was made on your behalf by Mr Patton of counsel.  He correctly identifies, as was conceded by the prosecution, you as being somewhere in the lower range of so-called Cluster 1 offenders.  That is, you were performing your role, in this case, as a crop-sitter, not as a principal offender.  You were not the primary beneficiary of the crop.  On the evidence before me, I am bound to accept that you were only involved for a relatively short period of time, possibly somewhere in the range of three to four weeks.  As I have just noted, you were, at the time, a very young offender. Other aspects of your circumstances which clearly puts you into the Cluster 1 category include the fact that you had never previously been imprisoned and that you were here in Australia as a young student who found yourself no longer supported by your family and in financial difficulty.  In those circumstances, you responded to the advertisement you saw on a notice board, offering you work in relation to this crop. 

3You are in this country on a student visa originally.  As I understand it, you have outlived that visa in any event.  It is inevitable, it is conceded by the prosecution, that upon your release having served your sentence you will be deported immediately.  I am sure that is what you are hoping to happen so that you can go back home to your family in Vietnam and make a fresh start after this terrible experience in your life. 

4I accept that you would be doing your time in prison hard.  You have no family in Australia.  You have not been receiving any visitors.  You have limited English.  You are very young.  All those circumstances justify the imposition of what might otherwise be regarded as a short sentence given the objection gravity of your offending. 

5You are sentenced to be imprisoned for 20 months and I fix a minimum non-parole period of 12 months.

6I declare that you have already served 193 days, is it not, by way of pre-sentence detention. 

7Thien Vu Hoang, you also pleaded guilty to one charge of the cultivating a commercial quantity of a narcotic plant.

8The circumstances of your offending, of course, were set out as they were in relation to your co-offenders, in comprehensive detail in the summary of prosecution opening, which was tendered and marked as Exhibit A.  You are also to be sentenced as a so-called Cluster 1 offender; that is, on the basis that your role was limited to that of a crop-sitter.  You were not a principal offender.  You did not stand to gain the primary financial benefit of the crop.  You were, rather, offered a financial reward for the purpose of looking after this crop.

9You came to Australia as a refugee.  You originally obtained a refugee visa.  As a result of these matters, that visa has been cancelled or will be cancelled and you too will be deported upon the service of your sentence.  I accept that you came here to try and relieve the serious financial difficulties that you and your family were suffering in Vietnam.  Apparently, your family had incurred, what in Vietnam was, a significant debt.  You have been unable to repay it.  You came here in the hope of getting work and being able to return money to your wife and two young children in Vietnam, so that debt could be dealt with. Things did not work out the way you hoped.  You tried to get work as a handyman.  No great deal of work was forthcoming, as I understand from Ms Harris’ submissions, on your behalf.  You were finding things financially difficult. You were subsequently offered the opportunity of a small loan to relieve the financial pressure, in Vietnam, in return for your agreeing to become involved in this crop.

10On the evidence before me, I find that you were involved for a longer period than that of your co-accused Giap Nguyen.  I reject the suggestion, made on your instructions from the Bar table, that you were only involved for four weeks.  The evidence of your neighbour, who apparently used to smile at and say good morning to you, so she knew you, was that you had been there for some time, possibly up to a year.  It is impossible, of course, for me to make any definitive finding as to precisely how long you were there but I find that you were there for a significantly longer period than a matter of weeks.  Therefore, the level of your culpability is greater than that of Mr Giap Nguyen. Your situation is also to be distinguished from his because you are significantly older than him.  You are 34, you are not an immature person.  You should have known a lot better.

11I take into your account as I do in relation to both of your co-offenders that you pleaded guilty at an early stage, at the earliest stage, practically in the proceedings.  It is consistent with your regret for what you did, your desire to facilitate the administration of justice.  I accept also of course that you are to be sentenced as a first offender.  I am sure you are also doing your time in gaol hard, never having been in prison before, having language difficulties, being separated from your family in Vietnam.

12Thien Vu Hoang, you are sentenced to two years' imprisonment and I fix a minimum non-parole period of 14 months.

13I declare that you have already served 193 days by way of pre-sentence detention.

14Khac Tu Nguyen, you pleaded guilty to cultivating a narcotic plant simpliciter.  That is, it is not alleged against you that the amount involved was a commercial quantity.  The Crown were unable to demonstrate on the evidence that you ever had any intention to cultivate a commercial quantity.  You pleaded guilty at an early stage in the proceedings, to that charge of cultivating simpliciter.

15You too are a relatively young man with no criminal history.  You come from the same area of Vietnam as your co-accused, Giap Nguyen. Apparently, Giap Nguyen was a friend of yours.  On the evidence before me, I am bound to accept that your involvement was much more limited than that of your two co-accused, and much shorter.  In fact, it seems accepted by the prosecution that you must be sentenced on the basis that your involvement was limited to something like a day, as opposed to weeks or months.  Of course, it is also accepted that you were not involved, knowingly, as I have just mentioned in such a large quantity.

16The Crown concede that the principles of parity apply, in relation to the sentence imposed on the fourth co-accused in this matter, Ms Do.  She received, in the Magistrates' Court, a relatively short sentence, which in her case involved a little more than time served; a sentence of 130 days' imprisonment. 

17Khac Tu Nguyen, you are convicted and sentenced to be imprisoned for 192 days and I declare that you have already served 193 days by way of pre-sentence detention.

18Mr Giap Nguyen, I indicate that had you not pleaded guilty in relation to this matter, I would have sentenced you to two years' imprisonment with a minimum of 15 months. 

19Mr Hoang, I indicate that had you not pleaded guilty in this matter, I would have sentenced you to two and a half years' imprisonment with a minimum of 18 months. 

20Mr Khac Tu Nguyen, I indicate that had you not pleaded guilty in relation to this matter, I would have sentenced you to nine months' imprisonment.

21Ancillary orders?

22MS ANDREWS:  Yes, ancillary orders are sought.

23HIS HONOUR:  Yes, have you got the draft orders there?

24MS ANDREWS:  Yes, Your Honour.

25HIS HONOUR:  Hand those up please.  Thank you.

26HIS HONOUR:  I will make the disposal orders.

27MS ANDREWS:  Thank you, Your Honour.

28HIS HONOUR:  I have signed the disposal orders, thank you.

29MS ANDREWS:  As the court pleases.

30HIS HONOUR:  All right, gentlemen in the dock, the reason that you have been sentenced to terms of imprisonment is that a message must be sent out, it is called general deterrence.  Other young men who find themselves in the position you found yourselves in, namely, in financial difficulties in a foreign country, must not be tempted to become involved in this sort of criminal activity.  They must know that if they do, they will end up in gaol.

31All right, thank you one and all.

32COUNSEL:  As the court pleases.

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